Summary
In Town of Blooming Grove v. City of Madison, 9 Wis.2d 443, 101 N.W.2d 809 (1960), the filing of an annexation petition with the city clerk was held to be equivalent to presentation of it to the council itself.
Summary of this case from Aldridge v. SlusherOpinion
February 1, 1960 —
March 8, 1960.
APPEAL from a judgment of the circuit court for Dane county: HARRY S. FOX, Circuit Judge of the Twelfth circuit, Presiding. Reversed.
For the appellant there were briefs by Harold E. Hanson, city attorney, and Leon E. Isaksen, attorneys, and Thomas, Orr, Isaksen, Werner Lathrop of counsel, all of Madison, and oral argument by Mr. Leon E. Isaksen, Mr. Trayton L. Lathrop, and Mr. Hanson.
For the respondent there was a brief and oral argument by Earl I. Cooper, attorney, and William J. P. Aberg and Paul C. Gartzke of counsel, all of Madison.
Action by the plaintiff town for a declaratory judgment adjudging that an ordinance adopted by the defendant city purporting to annex certain territory of the town to the city be declared invalid, and enjoining the city from enforcing such ordinance.
This action has been before this court on two prior appeals reported in 275 Wis. 342, 81 N.W.2d 721, and 4 Wis.2d 447, 90 N.W.2d 573, both originating as a result of motions for summary judgment. The action came on for trial on April 8, 1959. The issue for trial was whether the petition for annexation lacked the number of signatures required under sec. 62.07(1), Stats. 1953, at the time of the adoption of the ordinance. The city stipulated that at the time of the adoption of the ordinance, the petition was neither signed by a majority of the electors then residing in the territory after deducting the withdrawals of signers from the petition, nor by the then owners of one half of the real estate, either in assessed value or area. However, as part of such stipulation, the city expressly stated that it did not concede that the petition was not signed by a majority of the electors, or by the owners of one half of the real estate either in assessed value or in area in the territory involved, after deducting withdrawals, measured as of the time of the filing of the petition.
Upon such stipulation having been made on the record, counsel for the town stated that a great many subpoenas were in the process of being prepared for service on witnesses and about 50 had already been served. The town then made an offer of proof, the material portions of which are as follows:
"We wish to make an offer of proof. We wish to call the persons in the courtroom, and be permitted to call other persons whom we have subpoenaed and will subpoena, who, if permitted to testify, will establish the persons living in the annexed area April 22, 1954, and September 21, 1954, who were electors on both dates. It will cover the electors residing in the annexed area April 22, 1954, but not on September 21, 1954. It will cover persons signing the petition but who have moved out of the area before April 22, 1954. It will cover persons who moved into the annexed area after April 22, 1954, and before September 21, 1954, and who are qualified electors as of September 21, 1954.
"It will cover all persons signing the annexation petition but withdrawing their signatures. . . . It will cover the names of persons owning real estate in the year 1954, and the assessed value of that real estate in 1953 and 1954.
". . . It will cover persons who signed the petition at the time it was filed but who died before September 21, 1954."
April 22, 1954, is the date on which the annexation petition was filed with the city clerk for presentation to the city council. September 21, 1954, is the date of the adoption of the annexation ordinance as alleged in the complaint.
The circuit court refused to permit the town to call any witnesses to establish by their testimony the facts stated in the town's offer of proof. The reason for such refusal was that the circuit court deemed that the city's stipulation made the calling of the town's witnesses unnecessary.
Findings of fact and conclusions of law were entered in which it was determined that the annexation ordinance was invalid and that the plaintiff town was entitled to judgment. Judgment was entered accordingly on June 29, 1959, adjudging the ordinance invalid and enjoining the city from enforcing the same. From such judgment the city has appealed. The town has filed a motion for review with respect to the trial court's ruling denying it the right to call witnesses to testify to the facts set forth in its offer of proof.
The controlling statute is sec. 62.07(1), Stats. 1953. The material portion of such statute reads as follows:
"Territory adjacent to any city may be annexed to such city in the manner following:
"(a) A petition therefor shall be presented to the council 1. signed by a majority of the electors in such adjacent territory and by the owners of one half of the real estate within the limits of the territory proposed to be annexed, or 2. if no electors reside in the said adjacent territory signed by the owners of one half of taxable property therein according to the last tax roll, or 3. by a majority of the electors and the owners of one half of the real estate in assessed value; . . ."
If the petition for annexation lacks sufficient signatures at the time it is originally filed for presentation to the city council, it is jurisdictionally defective under such statute. Greenfield v. Milwaukee (1956), 272 Wis. 610, 76 N.W.2d 320, and Wilson v. Sheboygan (1939), 230 Wis. 483, 283 N.W. 312. Subsequent to filing, but before adoption of the ordinance, signers have the right to withdraw their signatures from the petition. Blooming Grove v. Madison (1948), 253 Wis. 215, 33 N.W.2d 312. Signatures may also be added to the petition during such period, and, in order for the city to enact a valid ordinance of annexation, there must be sufficient signatures on the petition at time of adoption of the ordinance, giving effect to any withdrawals and additions. Town of Brookfield v. City of Brookfield (1957), 274 Wis. 638, 80 N.W.2d 800.
The instant appeal presents the issue of whether the sufficiency of signatures on the annexation petition, as of the time of the adoption of the ordinance, is measured by the situation with respect to the number of electors and identity of property ownership as of the date of the filing of the petition or as of the adoption of the ordinance. The learned trial court determined that such sufficiency is measured as of the latter date. Under such holding, any change in the number of electors residing in the territory to be annexed, or in property ownership in such territory, which occurred between the date of filing and the date of enactment, might materially affect the sufficiency of the signatures as of the date the ordinance is adopted.
We are unable to find any clear-cut statement on such issue in any of the prior opinions of this court. The closest approach to the same appears in Greenfield v. Milwaukee, supra. In that case we held that when a valid petition is filed the city acquires jurisdiction, and that (p. 613): "Any action by the council thereafter would be voidable if withdrawals reduced the signatures to less than the required number at the time the ordinance was adopted . . ." (Emphasis supplied.) While such statement was obiter dictum, the phrase "the required number" had reference to the number of signatures required by sec. 62.07(1), Stats. 1953, to be on the petition at the time it is presented to the council. Presentation and synonymous terms when applied to annexation petitions, because a filing with the city clerk is the equivalent of presentation to the council.
A plain reading of the hereinbefore-quoted portion of sec. 62.07(1), Stats. 1953, seems to us to make it clear that the required number of signatures to an annexation petition is measured as of but one time, not two, and such time is that of presentation to the council. Therefore, it is wholly immaterial whether electors move in or out of the territory to be annexed, or property therein changes ownership, during the period which elapses between the original filing and the date of adoption of the ordinance. If this were not the case, then a petition, which was valid when filed, and from which no withdrawal of signatures had taken place up until the time the council adopted the ordinance of annexation, might be rendered voidable by changes which had occurred in the meantime in the territory with respect to electors or property ownership. We do not deem that the statute is subject to such interpretation.
The plaintiff town places great reliance upon the opinion of this court in Town of Brookfield v. City of Brookfield, supra. In that case there were 120 electors residing in the territory at the time the annexation petition was filed. Subsequently two more electors moved into such territory before the city council adopted the ordinance of annexation. The petition at time of filing bore the signatures of 63 electors. Subsequently, before adoption of the ordinance, there were withdrawals and additions of signatures made, but the net result was that the petition bore 63 signatures at time of passage of the ordinance. Therefore, whether the number of signatures as of the time of adoption was measured against the 120 electors who resided in the territory when the petition was filed, or against the 122 who resided therein when the ordinance was adopted, it was sufficient to constitute a majority at either time. However, in our opinion we stated (p. 641): "The supplemental copy of the annexation petition brought the total number of electors signing to 63, which was a majority of the 122 qualified electors."
Such reference on our part to "122 qualified electors" in the Brookfield Case opinion was unfortunate, although it in no way affected the result reached. Only the 120 electors residing in the territory at the time the petition was filed should have been employed as the measuring stick to determine if the petition bore sufficient signatures as of the time of the adoption of the annexation ordinance. We greatly regret that our determination of the issue presented by the instant appeal necessitates that this case, which has previously been remanded twice before for further proceedings in the trial court, must again be remanded for the same purpose.
The city contends that we should reverse and grant judgment in its behalf adjudging the annexation ordinance to be valid. While the town contended below, as well as here, that the sufficiency of signatures at time of adoption of the ordinance should be tested against the situation as then existed with respect to number of electors and property ownership, thereby giving effect to changes which had occurred between the filing of the petition and the date of adoption of the ordinance, the allegations of its complaint are sufficient to charge that the petition as of the time of adoption of the ordinance did not bear the required number of signatures measured against the conditions that existed on the date of the filing of the petition. This is because the complaint specifically alleged that the petition at time of adoption of the ordinance did not bear the number of signatures required by sec. 62.07(1), Stats. 1953. Furthermore, the town protected itself at the trial below by its offer of proof and attempt to call witnesses to substantiate the same.
We are unaware of any principle of estoppel by which the town would be precluded from being afforded an opportunity to present its evidence with respect to the number of electors who resided in the territory on the date the petition was filed, and the relevant facts with respect to property ownership and assessed value in such territory as of that date. We, therefore, hold that it was error for the trial court to have refused the town the opportunity to call witnesses to testify to such facts.
By the Court. — Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.
FAIRCHILD, J., took no part.